IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

BRYAN YOUNG, :

Petitioner :

 :

v. : No. 05-3697

:

KENNETH KYLER , et al., :

Respondents :

MEMORANDUM

GREEN, S.J. March , 2006

Presently pending is the petition for writ of habeas corpus, the Report and

Recommendation (the “Report”) of United States Magistrate Judge Charles B. Smith, and Petitioner’s

Objections thereto. Petitioner objects to the Magistrate’s conclusion that the petition for writ of

habeas corpus relief was untimely filed and must be dismissed. Petitioner essentially objects to the

Report on the following grounds: (1) that he mistakenly filed his petition for habeas corpus relief in the

wrong forum; and (2) that the statute of limitations should be equitably tolled on the basis of

“extraordinary circumstances” because Petitioner diligently exercised extraordinary efforts to protect

his post sentence rights. Petitioner’s Objections will be overruled and the Report will be approved

and adopted. 

FACTUAL AND PROCEDURAL BACKGROUND

There is no dispute concerning the factual background of this matter. Therefore the

Court will incorporate by reference the Procedural History portion of the Report and will only restate

the facts necessary for this Court’s determination. Petitioner was convicted of first degree murder,

attempted murder, conspiracy, and possession of an instrument of crime in September 1997. He

appealed the conviction and the Pennsylvania Superior Court affirmed judgment on October 7, 1999. 

The Pennsylvania Supreme Court denied his request for allowance of appeal on March 20, 2000. 

Petitioner filed his first Post-Conviction Relief Act (“PCRA”) petition on May 21, 2001 which the PCRA

court denied. The Pennsylvania Superior Court affirmed that decision on June 19, 2003 and the

Pennsylvania Supreme Court denied allowance of appeal on November 25, 2003. 

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Petitioner filed a second PCRA petition on December 18, 2003. The PCRA court

dismissed the second PCRA petition on February 28, 2005. Petitioner claims that he mistakenly

forwarded his federal habeas corpus petition to the Clerk of Quarter Sessions for Philadelphia County

on January 24, 2004 which was time stamped there on January 28, 2004. Petitioner further claims

that the Clerk of Quarter Sessions informed him that his federal habeas corpus petition would be

forwarded to the correct agency. Petitioner asserts that the petition was never forwarded to this Court

by the Clerk of Quarter Sessions for Philadelphia County. Petitioner subsequently obtained counsel

who filed the instant petition in this Court on July 15, 2005. 

DISCUSSION

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), became

effective on April 26, 1996. It provides applicants with a one-year period of limitation from its effective

date, or the date on which the judgment of conviction became final by the conclusion of direct review

or the expiration of time to seek such review, within which to file a petition for writ of habeas corpus. 

Accordingly, applicants convicted prior to April 26, 1996 had until April 26, 1997 to timely file a petition

for writ of habeas corpus. See, Miller v. New Jersey State Dep’t of Corrections, 145 F.3d 615, 617-18

(3d Cir. 1998). Applicants convicted after AEDPA’s effective date have one year after the judgment

of conviction becomes final to timely file a petition. Petitioner was convicted in 1997 and the direct 

review of his conviction became final on June 19, 2000, ninety days after the Pennsylvania Supreme

Court denied allocatur. Therefore, Petitioner’s one year statute of limitations began to run on June

19, 2000 and expired on June 19, 2001. The one year limitations period, however, must be tolled for

the time during which any properly filed PCRA petitions were pending. 

Petitioner filed his first PCRA petition on May 22, 2001; at that time 337 days of his

one year statute of limitations had already passed. The statute of limitations can only be tolled during

the pendency of his first PCRA petition, not during the pendency of his untimely second PCRA

petition. Review of his first PCRA petition concluded on November 25, 2003. Petitioner only had 28

days thereafter, or on or before December 19, 2003, within which he could timely file a federal

petition for habeas corpus relief. Petitioner did not attempt to file any other petition for collateral

Case 2:05-cv-03697-CG Document 9 Filed 03/03/06 Page 2 of 4
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review until January 24, 2004, more than one month after the expiration of the applicable statute of

limitations. Petitioner’s counsel now argues that he timely asserted his right, but did so in the wrong

forum. As explained above, this assertion is erroneous. Petitioner’s attempted filing of his federal

petition for habeas corpus relief was untimely. He did not timely assert his rights in the wrong forum. 

The attempted filing was more than one month after the limitations period expired. Moreover,

Petitioner argues that AEDPA’s statute of limitations should be equitably tolled because of

extraordinary circumstances. However, Petitioner has not set forth any reason for his failure to file a

petition for collateral review from June 20, 2000 through May 22, 2001. Further, as Magistrate Judge

Smith correctly noted, Petitioner’s second PCRA petition does not provide him with any basis for

equitable or tolling relief, because it was dismissed as untimely and cannot be considered a properly

filed petition. For the aforementioned reasons Petitioner’s Objections to the Report will be overruled

and the Report will be approved and adopted.

And appropriate Order follows.

Case 2:05-cv-03697-CG Document 9 Filed 03/03/06 Page 3 of 4
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

BRYAN YOUNG, :

Petitioner :

 :

v. : No. 05-3697

:

KENNETH KYLER , et al., :

Respondents :

ORDER

AND NOW, this day of March 2006, after careful and independent consideration

of the petition for a writ of habeas corpus and Petitioner’s Objections thereto, IT IS HEREBY

ORDERED that::

1. Petitioner’s Objections are OVERRULED;

2. The Report and Recommendation is APPROVED and ADOPTED;

3. The petition for a writ of habeas corpus is DISMISSED as time barred; and

4. A certificate of appealability is not granted.

BY THE COURT:

s/_________________________

Clifford Scott Green, S.J.

Case 2:05-cv-03697-CG Document 9 Filed 03/03/06 Page 4 of 4